The Supreme Court (SC) has paved the way for the criminal prosecution of real estate developer Luke Roxas and his business associate Evelyn Nolasco for five counts of estafa and violations of the Revised Securities Act for their alleged failure to return about P30 million borrowed from two investors in 1997.

In a decision written by Justice Dante O. Tinga, the SC reversed the Court of Appeals (CA) as it reinstated the criminal charges filed by the Department of Justice (DoJ) against Roxas and Nolasco as president and treasurer of ASB Holdings Inc. (ASBHI).

It granted the petition filed by investors Betty Gabionza and Isabelita Tan who challenged the CA ruling that dismissed the criminal charges against Roxas and Nolasco filed before the Makati City Regional Trial Court (RTC).

"This court consistently adheres to its policy of non-interference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the filing of an information against a supposed offender," it stressed.

Gabionza and Tan originally placed monetary investments with the Bank of Southeast Asia. In 1997, they said they were enticed to invest in ASBHI and were issued receipts in the name of "ASB Realty Development."

They said that they were issued two checks for every investment they made, one for the principal amount and the other for the interest.

In early 2000, the bank started to refuse payment of checks by virtue of "stop payment" orders from ASBHI. In 2000, ASBHI filed a petition for rehabilitation and receivership with the Securities and Exchange Commission (SEC) and was able to obtain an order enjoining it from paying its outstanding liabilities.

With several cases filed against ASBHI, the DoJ created a task force to investigate. The complaints were dismissed.

Gabionza and Tan filed a petition for review that led to the filing of five estafa cases and violations of the Revised Securities Act against Roxas and Nolasco. The DoJ established that Gabionza lost R12.16 million while Tan lost R16 million due to the fraudulent transactions.

When the criminal cases were filed with the Makati City RTC, Roxas and Nolasco elevated the issue before the CA which reversed the DoJ in 2003 and ordered the dismissal of the charges. Gabionza and Tan filed a petition with the SC.